Opinion
November, 1905.
James F. Donnelly, for appellant.
Wales F. Severance, for respondent.
In my opinion, the plaintiff should have been nonsuited upon his own testimony. The action is for damages alleged to have resulted from defendant's negligence. The defendant was a contractor engaged in building a portion of the subway in this city. At Broadway and Wall street, a station was constructed which necessitated excavating under the sidewalk. The defendant replaced, temporarily the sidewalk by erecting a structure of planks. The planks were laid in two layers, the top of the lower one being flush with the adjoining stone sidewalk. The upper layer of planks projected above the stone sidewalk, such projection being two inches in height at the building, gradually lessening to seven-eighths of an inch at the curb. The plaintiff testifies that, at the point where he fell, the plank was about one and one-half inches high. The plaintiff, walking up Broadway in the nighttime, stubbed his toe on the planking and fell, with the result that his elbow was bruised and abraded. It seems to be conceded that defendant's act in laying down the plank sidewalk was lawful and done in pursuance of a public work. No claim that this structure was a nuisance is, or could successfully be made. The sole question is, whether it was negligence to leave a plank in the sidewalk, projecting one and one-half inches above the surface of the adjacent walk. Under the circumstances, the defendant's duty with respect to maintaining the sidewalk in a safe condition was the same that attaches to a municipality in caring for its sidewalks generally, that is to say; it was chargeable with the duty of exercising reasonable care. Lafflin v. Buffalo S.W.R.R. Co., 106 N.Y. 136; O'Reilly v. Long Island R.R. Co., 15 A.D. 79. Would a municipality be held guilty of negligence for permitting to remain in a sidewalk, after due notice, an irregularity not more than one and one-half inches in height? I think not. In Beltz v. City of Yonkers, 148 N.Y. 67, the defendant was acquitted of negligence, although it had permitted a hole to remain, in the middle of the sidewalk, two feet and two inches in length, by seven and one-half inches in width and of the depth of two and one-half inches. The court in that case said: "When the defect is of such a character that reasonable and prudent men may reasonably differ as to whether an accident could or should have been reasonably anticipated from its existence or not, then the case is generally one for the jury; but when, as in this case, the defect is so slight that no careful or prudent man would reasonably anticipate any danger from its existence but, still, an accident happens which could have been guarded against by the exercise of extraordinary care and foresight, the question of defendant's responsibility is one of law." In other recent cases, irregularities in the sidewalk more serious than that in the case at bar and in consequence of which accidents happened, have been held not to establish negligence on the part of a municipality. In Hamilton v. City of Buffalo, 173 N.Y. 72, the defect complained of was a depression in a crosswalk, four inches deep, thirty-four inches long and twelve inches wide. It was held that such a depression was so slight a defect that it would not reasonably suggest to the mind of a careful or prudent person that it was dangerous, or likely to cause accident.
In Corson v. City of New York, 78 A.D. 481, there was an irregularity in the level of two adjoining flagstones, amounting to two and three-quarter inches at the maximum and one and one-half inches at the minimum. The municipality was acquitted of negligence, and it was, also, in Schall v. City of New York, 88 A.D. 64, where the depression was three and one-half inches deep. Neither the city, nor, under existing circumstances, this defendant, is to be held as an insurer of the safety of the streets, nor to the duty of foreseeing and guarding against accidents which could not reasonably have been anticipated. It certainly was not to be anticipated that any pedestrian, by day or night, would suffer a painful accident from stumbling over a plank in the street not more than one and one-half inches high. In my opinion, the evidence showed, as matter of law, that the defendant was guilty of no negligence.
The judgment should, therefore, be reversed and a new trial granted, with costs to appellant to abide the event.
GILDERSLEEVE and MAcLEAN, JJ., concur.
Judgment reversed and new trial granted, with costs to appellant to abide event.